Characteristics of Legal Language

1. Characteristicsof Legal Language Chapter 3

2. Preview • Linguistic levels • Descriptive features • Proper use of legal language

3. Phonology • The pronunciation of the Latin legal notions (English pronunciation, classical pronunciation) • The voice tone in some courts • Hypercorrectness in the pronunciation or notaries’ routine reading of legal documents • Forensic phonetics

4. Morphology • Word formation • The meaning of complex words, e.g. payable: A bill is payable on Oct. 1 = • The bill should be paid by Oct. 1 • The meaning of some complex words – not composed of the meaning of their parts; the importance of context • Antiquated morphological formations: e.g. This policy witnesseth that…

5. Syntax • Complex sentences; complicated syntactic patterns

6. Example: ActofSettlement (1700) • “And it was thereby further enacted that all and every person and persons that then were or afterwards should be reconciled to or shall hold communion with the see or church of Rome or should professe the popish religion or marry a papist should be excluded and are by that Act made for ever incapable to inherit possess or enjoy the crown and government of this realm and Ireland and the dominions thereunto belonging or any part of the same or to have use or exercise any regall power authority or jurisdiction within the same and in all and every such case and cases the people of this realm shall be and are thereby absolved of their allegiance and that the said crown and government shall from time to time descend to and be enjoyed the same in case the said person so reconciled holding communion professing or marrying as aforesaid were naturally dead.”

7. Syntax • The omission of the definite article before the terms plaintiff or defendant in judicial decisions: e.g. It is clear, defendant believed it could comply with the contract by delivering stewing chickens. Plaintiff asserts that it is equally plain that plaintiff’s own subjective intent was to obtain broilers and fryers (Frigaliment Importing Co. V. B.N.S. International Sales Corp. 1960)

8. Syntax • Legal English sometimes follows the French pattern of the adjective set behind the noun: attorney general, court martial • Syntactic structures common for opening in pleadings, e.g. Comes now plaintiff for Here comes the plaintiff

9. Semantics • To define legal-linguistic use • Judicial interpretation (definitions)

10. Polysemy • Proxy: 1) person authorized to vote for someone (<proxy holder) 2) the grant of voting authority; 3)document which grants the shareholder the right to vote • Equity: 1) fairness; 2) a source of English law providing alternative legal remedies; 3) ownership interest in the company (ordinary share); a share in a limited company

11. Synonymy • Obligated – obliged • Bankrutcy - insolvency

12. Lexicology • Choice of lexical units, lexical borrowings, synonyms, phraseology, etymology • Lexical units undergo a process of selection and change in which they acquire a more precise meaning within the special register

13. Phraseology • American phraseology may differ from the British one: called to the bar – admitted to practice • Binomials in legal English: final and conclusive, free and clear, last will and testament, keep and maintain

14. Etymology • Plays a role esp. in the research into legal terminology • search for the original meaning of a legal term

15. Textualaspects • Legal analysis – concerned mostly with linguistic units that surpass the sentence or even a sequence of sentences • Readability of texts depends on their textual structure: the more explicitly the coherence among phrases is marked, the less is the risk of misunderstanding

16. Textualaspects • Structure of French court decisions: • 1. règle générale applicable (majeure), 2. cas particulier de l’espèce (mineure), 3. application du générale au particulier (décision prise, conclusion)

17. Definitions • To minimize the risk of polysemy • A first orientation about a concept used in law and can be used as a framework for the development of legal argumentation in a case

18. 1.3. Definitions • Legal terms may have multiple meanings (polysemy) • Therefore, they are often defined within a particular context to avoid mistakes and misunderstandings • Legal language – many definitions • Corpus iuris civilis (Code, Digest, Institutes, Novellae; the Digest: 246 legal definitions)

19. 1.3. Definitions • Real and terminological • Real d.: concern entities that exist in reality in the physical world (e.g. real property) • “Goods are movable by their nature, or if the law so determines” (Les biens sont meubles par leur nature, ou par la détermination de la loi) • Terminological d. only exist in legal reality (e.g. an obligation) • The borderline between real and terminological definitions – often vague

20. 1.3. Definitions • Extension: the class of entities to which a term refers • Intension: common characteristics of all the meanings of the term)

21. 1.3. Extensionaldefinitions • Formulated by enumerating the sub-classes that form the class to be defined; this is possible where the sub-classes are well-known and their number is limited

22. 1.3. Intensionaldefinitions • The definitio per genus et differentiam • The starting point – to indicate the class to which the sub-class to be defined (species) belongs • The next step: to show the elements by virtue of which the sub-class to be defined differs from the other sub-classes included in the class • Legal system – based on classifications

23. 1.3. Definitiopergenus et differentiam: theItalian Civil Code • Additionally, codes and other major pieces of legislation contain definitions of terms that can be characterised as “implied”: the content of a term used in a code can, at least in part, be determined from the position of the term in the systemic structure of the code. The headings of the code (books, titles, chapters, sections, subsections, paragraphs) function as parts of the definition.

24. DefinitioninLegislation • Combines the characteristics of real and terminological definitions, as well as those of extensive and intensive d. • Common law countries – detailed definitions

25. Example: • MEANING OF “HOUSE” AND “HOUSE AND PREMISES”, AND ADJUSTMENT OF BOUNDARY.- (1) For purposes of this Part of this Act, “house” includes any building designed or adopted for living in and reasonably so called, nothwithstanding that the building is not structurally detached, or was or is not solely designed or adapted for living in, or is divided horizontally into flats or maisonettes; and-

26. (a) where a building is divided horizontally; the flats or other units into which it is so divided are not separate “houses”, though the building as a whole may be; and • (b) where a building is divided vertically the building as a whole is not a “house” though any of the units into which it is divided may be…. (p. 68)

27. 1.3.2. Legislation: definitions • Principal terms in international treaties – often defined in treaties themsleves; legal institutions differ from one country to another; • interpreters of a treaty form a heterogenous audience characterised by linguistic pluralism

28. Example • “For the purposes of this Convention (…) (b) a trustee shall not be regarded as an agent of the trust, of the person who has created the trust, or of the beneficiaries (Aux fins de la présente Convention (…) (b) le trustee n’est pas considéré comme un intermédiaire agissant pour le compte du trust, du constituant ou du bénéficiaire)” (the (Hague) Convention on the Law Applicable to Agency) • - the institution of trust: traditionally unknown in continental Europe it was necessary to define the connection between trust and the Convention

29. 1.3.3. Court decisions: definitions. Judgmentofthe Imperial German Supreme Court (Reichgerichtshof) (1879) • Eisenbahn is “ein Unternehmen, gerichtet auf wiederholte Fortbewegung von Personen oder Sachen über nicht ganz unbedeutende Raumstrecken auf metallener Grundlage, welche durch ihre Konsistenz, Konstruktion und Glätte den Transport grosser Gewichtsmassen beziehungsweise die Erzielung einer verhältnismässig bedeutenden Schnelligkeit der Transportbewegung zu ermöglichen bestimmt ist, und durch diese Eigenart in Verbindung mit den ausserdem zur Erzeugung der Transportbewegung benutzten Naturkräften (Dampf, Elektrizität, tierischer oder menschlicher Muskeltätigkeit, bei geneigter Ebene der Bahn auch schon der eigenen Schwere der Transportgefässe und deren Ladung, usw.) bei dem Betrieb des Unternehmens auf derselben eine verhältnismässig gewaltige (je nach den Umständen nur in bezweckter Weise nützliche oder Menschenleben vernichtende und die menschliche Gesundheit verletzende) wirckung zu erzeugen fähig ist.” (RGZ= Reichsgericht in Zivilsachen I, 247) (p. 69)

30. Court decisions: definitionsjudgmentofthe Imperial German Supreme Court (Reichgerichtshof) (1879) • Background of this judgment: a law adopted in 1871 which imposed strict liability on railway companies for risk created • Lawyers for the railway companies attempted by all means to limit the notion of railway in order to avoid strict liability

31. 1.3.3. Privatedocuments: definitions • Commercial contracts and wills drawn by common-law lawyers often include definitions

32. Privatedocuments: will • ARTICLE ONE • DEFINITIONS • “Beneficiary” meanstherecipientof a bequestmadebythisWill. • “Bequest” means a giftmadebythisWill. • “Mychildren” meansmydaughter REBECCA SUSAN WEISS, bornJanuary 24, 1987M myson CHRISTOPHER WEISS, born June 5, 1990; mystepson WILLIAM PAUL WEISS, whether or notlateradoptedby me, andanyotherchildrenborn to or adoptedby me after I executethisWill

33. 1.3.4.Problems of legal definitions • Detailed definitions give the impression that legal language is entirely accurate and without ambiguity, which is not the case • Legal vocabulary – words with multiple meanings; no amount of detailed definition can avoid all cases of ambiguity; likelihoood of ambiguity increases with more detailed definition: it is complicated and it is attractive to consider it complete in spite of the possibility of gaps

34. 1.3.4.Problems of legal definitions • Additional problems: knowing to what extent a legislative definition is conditional on the law in question still remaining in force in unchanged form • The concept expressed by the definition may have been essentially broadened or narrowed by case law or by legal science

35. 1.4. Enumerations • Enumerative lists often raise the problem of knowing if they are exhaustive or merely explanatory

36. 1.4. Enumerations: example • Au sens du présent titre, on entend par: Matériels de base, générateurs des matériels forestiers de reproduction;-les peuplements, notamment les vergers à graines, pour les matériels de reproduction générative; les clones et les mélanges de clones en proportions spécifiées pour les matériels de multiplication végétative; Matériels forestiers de reproduction: - les semences: cônes, infrutescences, fruits et graines, destinés à la production de plantes par voie générative; (…)(Code forestier) p. 71

37. Particulardescriptivefeatures • Precision • Information (over)load • Universality and aloofness • Systemic character • Structure and Formalism • Initialisations and Acronyms • Archaism and solemnity

38. Precision • Accuracy and precision – fundamental characteristics of legal language • Result from the requirement for legal protection and legal certainty • To avoid the possibility of arbitrariness, legal rules should be formulated without ambiguity

39. Precision • In a democratic state, linguisticclarity – absolutenormoflegislation • Dictatorships – sometimesalsoprefer clear language; however, theycanmoveover to a formoflanguagethat is intentionallyunclear, if it servestheirinterests • Ininternationalrelations, linguisticambiguitymaybe a consciouschoicein some negotiatingsituations (e.g. negotiatorscanleaveequivocalanarticlein a treaty on whichtheyhavenotreachedagreement; thisallowsthepartieslater to make a “corridorcompromise” withoutendangeringtheentryintoforceofthetreaty

40. Precision • Written form – necessary for accuracy • Oral legal knowledge – uncertain and changeable • Archaic law: summary character – concrete situations, presented in rhythmical form for mnemonic reasons

41. 2. Informationoverload • Modern, complex society – enormous number of legal rules • Legal language should be as concise as possible to avoid laws and regulations that would otherwise be over-long and unclear • At the same time, legal language should avoid over-abstraction to enable decoding with minumum effort

42. 2. Informationoverload • The key: to know for whom laws are written – experts or citizens? • Even laws concerning fundamental questions of citizens’ lives – written for experts who are charged with their technical application (e.g. social and fiscal law) • Laws – highly complex: distributive justice, which presupposes highly detailed rules

43. 2. Informationoverload • Often – mathematical formulas relating to the calculation of some welfare allowance or a tax to be paid • Social and fiscal laws should be written very compactly, with as high a density of information as possible, to prevent their becoming over-long

44. 2. Informationoverload • The legislator does not suppose that laws of a technical character are understandable to the general public • Such laws – communicated to citizens by means of short-form bulletins, leaving out the details

45. 2. Informationoverload • In many civil-law countries – the language of judgments – overloaded with messages; appearance of abridged codes • Today – judgments closer to ordinary language; however, because of this, judgments have become too long and their internal logic is weakened; a judgment formulated in ordinary language contains more secondary elements, impeding the transmission of the legal message, than a traditional compact judgment

46. 3. Universalityandaloofness3.1. AbstractionandHypotheticalCharacter • Modern law-abstract character; regulates entities that are mental creations: rights and obligations; in Swedish legislation: only 5-8% verbal substantives refer to entities that exist in time and space • Law – based on experience drawn from the real world but it regulates hypothetical future cases; timespan linked to legal rules – often characterised by universality, impossible to see from the chronological standpoint: “timelessness of law”

47. 3.1. AbstractionandHypotheticalCharacter • Verbs: conditional is common, while the present tense dominates • Private documents: parties have to prepare for possible change of circumstances; to some extent, the clauses have to allow for hypothetical situations

48. 3.2. ImpersonalityandObjectivisation • Frequent use of passive: brings the object of the action into the foreground, giving the actor only a secondary role • Even when actors are in the foreground, individuals are pushed into the background by personification of authorities and corporations: e.g. the ministry orders (…), the court finds(…)

49. 3.2. ImpersonalityandObjectivisation • Actors to do not appear under their private names but are called by their titles or functions: director, president, etc • Private persons -named according to their roles: applicant, appellant, defendant • Advocates seek to lend their arguments an appearance of objectivity to make them credible and convincing (e.g. “It appears that Article 27 of the law on judicial records should be interpreted so that (…); not: “It seems to me…)”

50. 3.3. Neutrality • At one time, the intention was to impress readers or listeners by a legal text, by stressing the sacred character of the law and by using magical rhythm; some features still exist: the language of oaths, the rituals of justice • Legal language today: official and formal • Neutral style: to have an effect on the understanding, rather than the feelings, of the reader or listener